A-4887, AUGUST 30, 1924, 4 COMP. GEN. 243

A-4887: Aug 30, 1924

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PAYMENT OF ARMORY DRILL PAY TO AN ENLISTED MAN OR TO HIS ESTATE WHO WAS FIFTY-FIVE YEARS OF AGE WHEN HE ENLISTED IS NOT AUTHORIZED. WIFE AND EXECUTRIX OF THE LAST WILL AND TESTAMENT OF WILLIAM PARSONS. WITH REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE CLAIM ON THE FACTS NOW PRESENTED. THE MATTER WAS HERETOFORE CONSIDERED BY THIS OFFICE AND IN DECISION OF NOVEMBER 10. IT WAS STATED: * * * THIS IS A CLAIM FOR ARMORY DRILL PAY BELIEVED TO HAVE BEEN EARNED UNDER SECTION 110 OF THE NATIONAL DEFENSE ACT. THE RESTRICTION ON THE USE OF THE APPROPRIATION IS ABSOLUTE AND NO EXECUTIVE OFFICER CAN WAIVE IT. 27 COMP. IT IS NOW REPRESENTED BY THE WIDOW THAT THE FIGURES OF THE YEAR OF BIRTH OF SERGT.

A-4887, AUGUST 30, 1924, 4 COMP. GEN. 243

NATIONAL GUARD PAY - AGE LIMIT SECTIONS 57 AND 58 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 197, FIXES THE MAXIMUM AGE FOR ENLISTMENT IN THE NATIONAL GUARD AT FORTY- FIVE YEARS, AND PAYMENT OF ARMORY DRILL PAY TO AN ENLISTED MAN OR TO HIS ESTATE WHO WAS FIFTY-FIVE YEARS OF AGE WHEN HE ENLISTED IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO E. W. WILSON, DISBURSING OFFICER, UNITED STATES ARMY, AUGUST 30, 1924:

THERE HAS BEEN RECEIVED BY YOUR EIGHTEENTH INDORSEMENT OF DECEMBER 20, 1923, PAPERS IN CONNECTION WITH THE CLAIM OF MRS. VELINA L. PARSONS, WIFE AND EXECUTRIX OF THE LAST WILL AND TESTAMENT OF WILLIAM PARSONS, LATE A SERGEANT, HEADQUARTERS AND SERVICE COMPANY, 112TH ENGINEERS, OHIO NATIONAL GUARD, FOR ARMORY DRILL PAY, EARNED PRIOR TO HIS DEATH MAY 25, 1922, WITH REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE CLAIM ON THE FACTS NOW PRESENTED. THE MATTER WAS HERETOFORE CONSIDERED BY THIS OFFICE AND IN DECISION OF NOVEMBER 10, 1923, IT WAS STATED:

* * * THIS IS A CLAIM FOR ARMORY DRILL PAY BELIEVED TO HAVE BEEN EARNED UNDER SECTION 110 OF THE NATIONAL DEFENSE ACT, 39 STAT. 210, AND 41 STAT. 784. THE THIRD PARAGRAPH OF THAT SECTION PROVIDES IN PART:

"EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, NO MONEY APPROPRIATED UNDER THE PROVISIONS OF THIS OR THE LAST PRECEDING SECTION SHALL BE PAID TO ANY PERSON NOT ON THE ACTIVE LIST, NOR TO ANY PERSON OVER SIXTY-FOUR YEARS OF AGE, * * *.'

THE AGE OF PARSONS HAVING BEEN INDICATED BY HIS WIDOW IN CIRCUMSTANCES ENTITLING HER STATEMENT TO GREAT WEIGHT, AND THE AGE SO INDICATED BEING OVER 64 YEARS DURING THE PERIOD COVERED BY THE CLAIM, THE RESTRICTION ON THE USE OF THE APPROPRIATION IS ABSOLUTE AND NO EXECUTIVE OFFICER CAN WAIVE IT. 27 COMP. DEC. 1021, 1 COMP. GEN. 132.

IT IS NOW REPRESENTED BY THE WIDOW THAT THE FIGURES OF THE YEAR OF BIRTH OF SERGT. WILLIAM PARSONS WERE TRANSPOSED IN HER FORMER AFFIDAVIT; THAT THE YEAR OF HIS BIRTH WAS IN FACT 1865 AND THAT HE WAS THEREFORE UNDER 56 YEARS OF AGE AT DATE OF ENLISTMENT, JANUARY 5, 1921. ON THIS REVISED STATE OF FACTS, THE QUESTION IS WHETHER A PERSON OVER 45 YEARS OF AGE MAY BE ENTITLED TO PAY AS AN ENLISTED MAN OF THE NATIONAL GUARD.

SECTIONS 57 AND 58 OF THE ACT OF JUNE 3, 1916, 39 STAT. 197, PROVIDE:

SEC. 57. COMPOSITION OF THE MILITIA.--- THE MILITIA OF THE UNITED STATES SHALL CONSIST OF ALL ABLE-BODIED MALE CITIZENS OF THE UNITED STATES AND ALL OTHER ABLE-BODIED MALES WHO HAVE OR SHALL HAVE DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES, WHO SHALL BE MORE THAN EIGHTEEN YEARS OF AGE AND, EXCEPT AS HEREINAFTER PROVIDED, NOT MORE THAN FORTY-FIVE YEARS OF AGE, AND SAID MILITIA SHALL BE DIVIDED INTO THREE CLASSES, THE NATIONAL GUARD, THE NAVAL MILITIA, AND THE UNORGANIZED MILITIA.

SEC. 58. COMPOSITION OF THE NATIONAL GUARD.--- THE NATIONAL GUARD SHALL CONSIST OF THE REGULARLY ENLISTED MILITIA BETWEEN THE AGES OF EIGHTEEN AND FORTY-FIVE YEARS ORGANIZED, ARMED, AND EQUIPPED AS HEREINAFTER PROVIDED, AND OF COMMISSIONED OFFICERS BETWEEN THE AGES OF TWENTY-ONE AND SIXTY-FOUR YEARS.

PARAGRAPH 319, NATIONAL GUARD REGULATIONS, 1922, PROVIDES:

ANY MALE CITIZEN OF THE UNITED STATES AND OF THE STATE CONCERNED, OR PERSON WHO HAS LEGALLY DECLARED HIS INTENTION TO BECOME A CITIZEN, IF ABOVE THE AGE OF 18 AND UNDER THE AGE OF 45 YEARS, ABLE-BODIED, FREE FROM DISEASE, OF GOOD CHARACTER AND TEMPERATE HABITS, MAY BE ACCEPTED FOR ENLISTMENT IN THE NATIONAL GUARD OF ANY STATE WITH THE EXCEPTIONS HEREIN STATED. THE RESTRICTION AS TO MAXIMUM AGE AND CITIZENSHIP SHALL NOT APPLY TO SOLDIERS WHO HAVE PREVIOUSLY SERVED HONESTLY AND FAITHFULLY IN THE UNITED STATES ARMY, REGULAR ARMY, THE ORGANIZED MILITIA, OR THE NATIONAL GUARD.

SECTION 57 PRESCRIBES THAT THE MILITIA (ALL OF THE MILITIA) SHALL CONSIST OF ABLE-BODIED MALE CITIZENS NOT MORE THAN 45 YEARS OF AGE, AND SECTION 58 THAT THE NATIONAL GUARD CLASS OF MILITIA SHALL CONSIST OF "THE REGULARLY ENLISTED MILITIA BETWEEN THE AGES OF 18 AND 45 YEARS.' THERE IS NO EXCEPTION CONTAINED IN THESE PROVISIONS OF LAW AS THERE IS IN SECTION 1116, REVISED STATUTES, AND IN THE PROVISO OF SECTION 4 OF THE ACT OF MARCH 2, 1899, 30 STAT., 978, WITH RESPECT TO THE AGE LIMITS FOR ENLISTING AND REENLISTING IN THE REGULAR ARMY.

THE LAW IS MANDATORY THAT ENLISTED MEN OF THE NATIONAL GUARD CLASS OF THE MILITIA SHALL BE "NOT MORE THAN 45 YEARS OF AGE" AND THOSE STATUTORY PROVISIONS CAN NOT BE WAIVED EITHER ON ORIGINAL ENLISTMENTS OR OR REENLISTMENTS. THE ENLISTMENT OF WILLIAM PARSONS JANUARY 5, 1921, HAVING BEEN CONTRARY TO LAW, HE EARNED NO PAY AND HIS ESTATE IS NOT ENTITLED TO BE PAID PAY FOR SERVICES UNDER THAT ENLISTMENT. THE PAPERS RECEIVED WITH YOUR SUBMISSION ARE RETURNED HEREWITH.